The Use of the Presidential Pardon

[lawrocket 3]

George W Bush hasn't used pardons veyr often. It's often been suggested that there is not used as a check and balance to the court system. One of the checks used is the ability to pardon.

In the Federalist Papers (yeah, I'm going back to college now) one of them talked about the necessity of the pardon power - it was necessary because a strict application of the law may at times be unjust. A POTUs can also reduce a sentence.

For example, Warren Harding pardoned communists jailed by the Woodrow Wilson Administration. Thomas Jefferson pardoned everyone jailed under the Sedition Act.

But most people remember the other history of pardons of political hacks, i.e. Ford of Nixon and Clinton's pardon of Mark Rich.

It seems as though GWB just doesn't pardon many people.

Frankly, I think more people should be pardoned. I think that a lot of the sentences imposed are downright draconian.

What do you all think of the Presidential Power of Pardon?

edited to add - that's a typo in the poll. I meant "too Often"

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[Gawain 0]

I expect that the President will issue quite a number in his final days in office, as is the custom. The fact that he's not issuing many now doesn't indicate anything to me.

So I try and I scream and I beg and I sigh
Just to prove I'm alive, and it's alright
'Cause tonight there's a way I'll make light of my treacherous life
Make light!

[BillyVance 35]

The only problem I would have with it is if the president uses it to help a "friend" clear his dubious name after a scandal or something that happened during his presidency... didn't that happen just a couple of weeks ago?

"Mediocre people don't like high achievers, and high achievers don't like mediocre people." - SIX TIME National Champion coach Nick Saban

[lawrocket 3]

I think it indicates some things. The examples I mentioned of Jefferson and Harding issued their pardons pretty early. Jefferson did it practically the same day.

I think it says plenty when a POTUS waits until the last day to issue pardons. It's pretty chickenshit, actually.

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[kelpdiver 2]

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I think it indicates some things. The examples I mentioned of Jefferson and Harding issued their pardons pretty early. Jefferson did it practically the same day.

I think it says plenty when a POTUS waits until the last day to issue pardons. It's pretty chickenshit, actually.

It's the norm these days. Harding was 80 years ago.

It's no longer a check/balance. It's just an executive priviledge used by the departing leader. Given the number of ways in which the White House has increased its power share over the past half century, it's probably good that this isn't one of them.

[kbordson 8]

I think that there is definately a place for Presidential Pardons. The legal system doesn't always work. I believe that the Pardon system helps to temper the harshness of the black and white decision of the courts, and provides an extra layer of review above the judge. It also allows for recognition/acknowledgement of a crime, while having mercy in the sentance.

I found these stastics interesting
http://jurist.law.pitt.edu/pardonspres1.htm

Woodrow Wilson, FDR, and Truman had the largest number of pardons issued. But if you consider the timeframe of each of those Presidencies - The Depression (Wilson), WWII (FDR, Truman), McCarthyism, Cold War, Korea (Truman) - it might put more perspective on why there might have been more pardons necessary... not just as political favors/get out of jail cards, but rather as the mood of the country was bitter and wanting "justice" in the form of higher penalties and the president recognized this and adjusted "fairly" for that.

I do, however, find it distasteful when that power is used to clear friends/supporters names as a final act on the last day.

Karen

[rehmwa 2]

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I think that there is definately a place for Presidential Pardons. The legal system doesn't always work. I believe that the Pardon system helps to temper the harshness of the black and white decision of the courts, and provides an extra layer of review above the judge.

I think pardons are travesties. If the legal system is what we think is our best way to dispense justice, then allowing a single individual to counter decisions made by that system is a terrible thing. If the system is broken, we fix the system, not give a personal veto to an individual (pres, governors, etc).

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[lawrocket 3]

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think pardons are travesties

I don't. There are some good reasons for pardons.

Hypothetical:
For example, let's say that your brither sells an ounce of marijuana to a narc on a couple of separate occasions. Let's say you had a pistol in your car the first time. Then let's say you had a pistol on you in an ankle holster the second tim - but you never used the gun, brandished it, or even mentioned it. A while later, his apartment is searched and they find 3 guns.

Because he won't agree to a 15 year sentence, federal charges are piled on. Following conviction, his mandatory minimum sentence is 55 years, which the judge imposes.

of course, this is no hypothetical. It happened. The judge that sentenced him was a conservative appointee in Utah whose publications include, "We're not executing the Innocent," Wall Street Journal, June 16, 2000 at A14; as well as numerous scathing publications railing against Miranda and supporting victim's rights. Hell, Judge Cassell even went on television to support the death sentence of a dude whose lawyer fell asleep at the trial.

Judge Cassell, in stating the sentence, compared it with other crimes, like 24 years for an airplane hijacker, 19 years for a bomb-detonating terrorist, and 15 years for a three-time child rapist. He then stated his belief that the sentence was "cruel, unjust and even irrational."

Situations like this call for a pardon. Not necessarily a release, but at least for a reduction of the sentence.

When Congress there's the criminalization of almost everything, sometimes it takes a POTUS to say, "Come on. Give me a break. This is ridiculous."

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[rehmwa 2]

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think pardons are travesties

I don't. There are some good reasons for pardons.

I'm not big fan of band-aid fixes. Your judge should be recalled, there are too many (and redundant) laws on the books, sentencing should be based on the actions, not the thought, etc.

I'll rephrase my statement to "I think the concept of pardons is a travesty".

I can also give hypotheticals or actions where pardons were abused for personal reasons. It's why I don't like discussions other than the concept and how it's implemented, rather than pull out outlyer examples and discuss in that fashion.

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Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[lawrocket 3]

Well, I think the concept of pardons is good, too.

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Your judge should be recalled

Why recall the judge? First, he's a federal judge, which would require impeachment. Secondly, he hated doing what he did, but he did his job because he had no choice. (Of course, this has changed somewhat since the SCOTUS decision on mandatory sentences).

So, for concept, I'll look to the Federalist. I found it - Federalist 74. Hamilton wrote that the POTUS "is also to be authorized to grant:

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"reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT. Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.''

What Hamilton was saying is that sometimes the law is too cruel. In fact, he was mentioning the rule of unintended consequences. Congress passes statutes, and court interpret and issue punishments. The Executive enforces statutes. When the circumstances reach a point where the penalties are unjust, such as the circumstance that I described, there should be a remedy.

The remedy would not lie with the courts. They have no power. The remedy would not be expected to lie in Congress. As Hamilton said about groups,

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"as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men. "

Thus, it is put in the power of the POTUS to make up his mind and do what is necessary. Congress created the Sedition Acts and the Courts jailed people for violating it. Jefferson thought that was screwed up and pardoned everyone in jail for violating same. The same held true for Harding, who pardoned war protesters, including communist Eugene Debs, who were put in jail by Wilson's administration for protesting a war.

To me that's noble. And I'd rather see some political hacks get out of jail along with those receiving something that resembles a true sense of justice than seeing people rot in jail for the rest of their lives for something pretty minor. Hell, there are plenty of strict liability crimes (possession is the law) where there may be innocent people in jail for 15 years for "possession" of something they did not even know about.

If the facts demonstrate that a person was factually innocent, but guilty as a matter of law, shouldn't there be some check to that possibility?

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[mr2mk1g 10]

I think everything you mention in your last post is an example of breakdown in the system rather than instances where something such as an executive pardon needs to be exercised. I go with rehmwa - fix the system don't simply paper over it with a cack-handed shore-up by the President.

At the risk of sounding like an amicus curiae brief, the direct equivalent over here is the Royal prerogative of mercy. It is used very sparingly and only in the most exceptional circumstances.

The power dates back to the middle ages and from the 18th Century has been effectively held by a cabinet minister (given our political system our cabinet performs basically the same role as your president; so the power's effectively wielded by the same entity – the Executive).

The criteria for issuing a Royal pardon is that it is impractical for the case to be referred to an appellate court and that there is new evidence which has not been before a court, which demonstrates beyond doubt that the convicted did not commit the crime (apart for remission pardons which require the demonstration of highly meritorious conduct - these reduce sentence though rather than being a complete discharge).

I don't know of an instance of the issue of a Royal pardon since 1997 and even then they were posthumously granted for historic crimes. I doubt the power will be used much anymore since we created the Criminal Cases Review Commission; i.e. we finally got round to actually fixing the system rather than continually papering over it.

I think the reservation of this power for only those rare and exceptional circumstances is extremely important. Our countries share a reverence for paramount importance of the constitutional separation of powers. While there are obviously areas where this line is blurred or even outright crossed, I'm sure you agree it is still very important that the line remain as intact as possible.

If there is a perceived injustice in product of the courts is it not much safer constitutionally speaking to actually reform the courts so they produce a just sentence? Simply giving the President the power to do as he please with convictions and hope what he ends up doing is the just thing is an invitation for abuse.

After all, once he's done it there'll be no comeback - it's not like he's going to do it till he's packing up his things from the Whitehouse.

[kallend 2,175]

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I think everything you mention in your last post is an example of breakdown in the system rather than instances where something such as an executive pardon needs to be exercised. I go with rehmwa - fix the system don't simply paper over it with a cack-handed shore-up by the President.

The system has been broken (according to you) for over 200 years. Waiting for it to be fixed is not a realistic option for anyone suffering under an unjust sentence.

The problem I see is not with the concept, but with the execution, where cronies of the Prez (like Cap. Weinberger) get pardons.

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[lisamariewillbe 1]

Didnt he pardon a few turkeys?

Sudsy Fist: i don't think i'd ever say this
Sudsy Fist: but you're looking damn sudsydoable in this

[mr2mk1g 10]

Well by my definition then our system was broken for a millennia... we still managed to finally find time to come up with the CCRC.

I still think the correct thing to do would be reform the law rather than jeopardize the entire constitution simply to correct the few errors it does throw up.

If everyone agrees with Lawrocket that chucking someone in jail for 55 years for dealing one bit of dope is wrong then why tolerate a legal system which creates such sentences? Why not change that system rather than continually undermine the entire constitutional founding of the whole country simply to routinely correct what the majority agree to be errors?

[kallend 2,175]

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Well by my definition then our system was broken for a millennia... we still managed to finally find time to come up with the CCRC.

I still think the correct thing to do would be reform the law rather than jeopardize the entire constitution simply to correct the few errors it does throw up.

If everyone agrees with Lawrocket that chucking someone in jail for 55 years for dealing one bit of dope is wrong then why tolerate a legal system which creates such sentences? Why not change that system rather than continually undermine the entire constitutional founding of the whole country simply to routinely correct what the majority agree to be errors?

Article II Section2, US Constitution (concerning powers of the President):

"and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States"

So pardons are PART of the Constitution, not undermining it!

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The only sure way to survive a canopy collision is not to have one.

[lawrocket 3]

Well, the biggest problem is that it is the system itself that can yield unjust results. Leaving it within the power of the chief executive to right a perceived wrong is admirable in many circumstances.

The issue of separation of powers is interesting. You want the powers to be separate and have automony. But you also want checks and balances to the system. The POTUS has become increasingly powerful since the 1920s. Part of that stems from the bully pulpit and the general lack of uniformity in Congress in reining in that power.

We see this going on with the POTUS right now and detainees. They are stuck without a remedy for the possible wrong that they are facing. What to do? You want a separation of powers? Who is gonna check the POTUS?

So you've got a check and balance. The POTUS can use the pardon for just that effect.

Are you averse to a system of check and balances?

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[mr2mk1g 10]

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So pardons are PART of the Constitution, not undermining it!

As they are here - but more important than the constitution is the foundation upon which it is built - such as things like the rule of law and the separation of powers. Without those foundations the Constitution itself is worthless.

It is the separation of powers which is undermined by the exercise of an Executive pardon. Yes, the power needs to exist as part of a system of checks and balances... but the routine exercise of it will the erode of the power of the courts. If the court's aren't powerful enough to take on the Executive when nessasery then you end up with Mugabe.

[lawrocket 3]

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Why not change that system rather than continually undermine the entire constitutional founding of the whole country simply to routinely correct what the majority agree to be errors?

Well, one thing is that the whole system includes the pardon power to check it.

The second problem is that we don't want to change the system - just make changes to the application of it. You don't scrap internet explorer when a bug shows up in it. You make a patch for it and then the problem should be fixed. The problem with that is the amount of time it takes. You gotta form a commission. They do the studies and take testimony. Then they get started on drafting the law, do markup, goes to predint, etc.

5 years later you've got a proposed solution (that will have bugs to work out in the future). In the meantime, you've got somebody waiting on the passage of this law when the POTUS can simply pardon her or reduce the sentence.

Sure, the law should be changed when it looks like the result is injust. But in the meanwtime, shouldn't there be a mechanism to help those "outliers" for whom the justice system became unjust? Or, do they wait until another remedy is thought up and passed through the political system?

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[mr2mk1g 10]

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Well, the biggest problem is that it is the system itself that can yield unjust results. Leaving it within the power of the chief executive to right a perceived wrong is admirable in many circumstances.

It is in many - hence the power exists and should continue to exist in limited circumstances. But the over-use of it is a very dangerous thing. What would be the point of having rules against torture or illegal political fund raising if the President can just pardon anyone who's caught by them?

Want to whack the opposition? Ah it's illegal. Oh well, I'll just pardon the hit man.

Much better IMO to engineer a system which reserves the use of the power for only those very exceptional circumstances which justify it.

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Who is gonna check the POTUS?

The courts - that's the point. NO one is above the law. The President's over use of the power to pardon people would make him above the law.

I'm not suggesting it has now... but what about in 100 years time? What people are doing now sets the tone for what is acceptable in 100 years time. How long till a Mugabe comes along who does want to do this? Would it not be a great idea to engineer the constitution so it keeps them in their place - as someone with 300 million bosses rather than the boss of 300 million people?

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So you've got a check and balance. The POTUS can use the pardon for just that effect.

Yes he is and can do so. But you want him to do this on every dope charge resulting in a mandatory 55 year sentence? At the expense of undermining the power of the courts? Why not just change the system so you don't get 55 year sentences - it would be much safer constitutionally speaking.

[mr2mk1g 10]

Sure it takes time - like I said it took us 1000 years. But that doesn't mean it isn't something to aspire to... nore does it make the alternative anything other than a quick fix... or "papering over it cack-handedly" as I described it in my first post (well paraphrased anyway).

[SudsyFist 0]

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You don't scrap internet explorer when a bug shows up in it. You make a patch for it and then the problem should be fixed.

F8-I Agree. The patch is called Mozilla Firefox.

[lawrocket 3]

So are you calling to reconvene a Constitutional Convention? Are you hoping to scrap the system we have now in favor of a new one?

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[SudsyFist 0]

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So are you calling to reconvene a Constitutional Convention? Are you hoping to scrap the system we have now in favor of a new one?

No, I'm saying you shouldn't scrap IE; after all, there are many websites that leave you squatting pissed and naked in the cold without it. But Firefox makes an excellent patch, indeed.

From where did this all huffy puffy Constitutional Convention stuff come? Sheesh.

[lawrocket 3]

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So are you calling to reconvene a Constitutional Convention? Are you hoping to scrap the system we have now in favor of a new one?

No, I'm saying you shouldn't scrap IE; after all, there are many websites that leave you squatting pissed and naked in the cold without it. But Firefox makes an excellent patch, indeed.

From where did this all huffy puffy Constitutional Convention stuff come? Sheesh.

D'Oh! I misread you. I apologize profusely. I was worng.

My wife is hotter than your wife.

[SudsyFist 0]

*smooches*

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